A Guide to the Navigation Protection Program’s Notification, Application and Review Requirements

From: Transport Canada

Transport Canada is introducing fees through the Canadian Navigable Waters Act Fees Regulations that recover a portion of the costs of processing applications for approvals of works and applications for exemptions from prohibited activities under the Canadian Navigable Waters Act. The fees for review of an approval of a work will be phased in gradually over approximately three years (2024-2027).

This fact sheet provides more information on the Canadian Navigable Waters Act (CNWA)’s regulation.

More information about the proposed fees is available at Canada Gazette, Part 1, Volume 157, Number 43: Canadian Navigable Waters Act Fees Regulations.

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What you need to know about the CNWA

The Canadian Navigable Waters Act (CNWA) authorizes and regulates interferences with the public right to navigation. The primary purpose of the CNWA is to regulate works and obstructions that may interfere with navigation in Canada’s navigable waters.

The Navigation Protection Program (NPP) is responsible for the administration and enforcement of the CNWA. The NPP services are delivered through Transport Canada’s (TC) regional offices located across Canada.

The NPP receives applications, conducts assessments, and issues approvals to construct or place works in navigable waters. Such works can range from private installations on recreational waterfront property to large-scale international mining operations.

Protecting Navigation in Canada’s Navigable Waters

Marine shipping is an important part of Canada’s transportation system. Today, major commercial marine operations are concentrated in fewer ports and waterways than in the past.

Canada’s navigable waters are also used for recreation, with fishing and tourism making significant contributions to our economy.

The focus of the NPP is on protecting navigation in Canada’s navigable waters used for commercial and recreational purposes.

Requirements have changed

The federal legislation protecting navigation was amended in 2018 and came into force in 2019. The requirements for application have changed significantly. Anyone contemplating the construction or placement of works in navigable waters should make sure they are familiar with these new requirements.

Get the facts!

It is important for any person or organization planning to build or place works in, on, over, under, through or across Canada’s navigable waters to have all the facts. Understanding the law and your obligations can help you avoid costly errors and delays.

The NPP offers pre-submission services, which provides support and guidance to owners of works concerning navigation considerations, legislative requirements, as well as processes and procedures under the CNWA. These services must be sought out in advance of a submission of a completed application for approval.

To become fully aware of all the requirements and the potential impacts of your work, please review this guide in detail, visit the NPP website and refer to the Act itself. If you still aren’t sure of your specific requirements, contact the NPP office in your region.

Who is this guide for?

This guide is a resource for anyone needing help with applying to the NPP for an approval regarding a proposed or existing work in a navigable water. Examples of work can range from small marina operators who want to build a series of docks, to natural resource companies planning a major development.

Many people who apply to the NPP are contractors and consultants (i.e. “agents”). These individuals specialize in building or placing works that may impact navigation. They are aware of the regulatory requirements and how to meet them. Others however, are owners of works who are contacting the NPP for the first time.

Recognizing the diversity of NPP clients, this guide provides a general overview of the application requirements and the review process. It can serve both as an introduction for someone contacting the NPP for the first time, and a refresher for those who have past experience with the program, either before or after the 2019 amendments to the legislation.

This guide will help you assess whether or not you need to notify the NPP about your proposed or existing work. If you do need to submit an application, the guide describes the steps you must take and explains how to prepare your application so you get a response as quickly as possible.

Submit your application online on the NPP External Submission Site.

Please note, this guide provides a general outline of the process and requirements for an NPP application and review. However, it does not replace professional assistance (where needed) in preparing the mandatory material.

If there is a difference in interpretation between this guide and the CNWA, the CNWA and its regulations take precedence.

Background and overview

The current Canadian Navigable Waters Act (CNWA) is the result of amendments to the former Navigation Protection Act (NPA).

2018 amendments

Legislative amendments to the NPA were introduced in Parliament in 2018, as part of Bill C-69, and received Royal Assent on June 21st, 2019.

The CNWA came into force on August 28th, 2019.

You can find the full text of the CNWA, along with the schedule, the Major Works Order and other regulations on the Government of Canada Justice Laws Website.

You can find more information about the NPP, including links to other publications, the Minor Works Order, resources and contact information for the regional offices on the NPP website.

New modern safeguards on all navigable waters in Canada

A new resolution process allows the Minister of Transport to review navigation concerns and require approval where concerns remain unresolved for the alteration, placement, rebuilding, removal or decommissioning of works on non-scheduled waters.

Purpose and scope of the NPP

The main activity of the NPP is administering the CNWA through the review and approval of works in navigable waters. Regardless of which process applies, the majority of the tasks carried out by the NPP involves evaluating impacts to navigation and acting to minimize risks—including risks to navigation safety— through decisions and compliance activities.

NPP processes

Before considering if you need to apply for an approval, you should understand what we mean by the terms “work” and “owner”.

A “work” is defined as any structure, device or other thing whether – temporary or permanent, that is made by humans, including a structure, device or other thing used for the repair or maintenance of another work. A work also includes the dumping of fill or the excavation or dredging of materials from the bed of any navigable water.

Under the CNWA, an “owner” in relation to a work, means the actual or reputed owner of the work or that owner’s agent or mandataryFootnote 1. It includes a person who is in possession or claiming ownership of the work and a person who is authorizing or otherwise responsible for the construction, placement, alteration, rebuilding, removal, decommissioning, repair, maintenance, operation, use or safety of the work. It includes a person who proposes to construct or place a work.

Do I need to apply?

Under the CNWA, owners of works who propose to construct, place, alter, rebuild, remove or decommission works that are in, on, under, through or across any navigable water may be required to apply to TC, for scheduled waterways, or go through the public resolution process, for unscheduled waters. The NPP is responsible for administering and processing applications. The Minister of Transport has the authority to issue terms and conditions with an approval.

Repairs

Repair and maintenance of works is not prohibited under the CNWA, and does not require approval. However, if a new work (even if temporary) will be constructed in order to complete the repair, the owners of works have to deposit any information specified by the Minister and publish a notice regarding the new work.

Change

For greater certainty, if, at any time, an owner makes a material change to the work or to the method of its construction, placement, alteration, rebuilding, removal or decommissioning, the owner must either make a new application or deposit new information and publish a new notice.

Prohibition

An owner is prohibited from constructing, placing, altering, rebuilding, removing or decommissioning a work that extinguishes navigation for vessels of any class that navigate, or are likely to navigate, the navigable water in question.

Minor works in any navigable water

The CNWA provides the Minister of Transport with the power to make orders. The Minor Works Order allows for specific works to be built, without review or approval, if they meet the criteria for the applicable class of works as well as specific terms and conditions.

However, if the proposed work is one of the following types of minor works, the owner is required to deposit information and publish a public notice, pursuant to the Minor Works Order:

  • Erosion-protection works

  • Aerial cables

  • Submarine cables   

  • Buried pipelines

  • Outfall & water intakes

  • Dredging

  • Watercourse crossings

Owners are required to notify the Canadian Coast Guard, in writing, at least 48 hours prior to the beginning of the project, to inform them of the expected start date. This applies for all minor works, including those that do not require a public notice and deposit of information.

It is the responsibility of the owner to assess the work and ensure that it meets all of the established criteria. It is also the responsibility of the owner to ensure that all legal requirements are met.

Please note — If your work does not meet the criteria established for the Minor Works Order, an application is required if your work is located on a scheduled navigable water (see “Do I need to apply?”). You must receive the NPP decision before constructing, placing, altering, rebuilding, removing or decommissioning the work.

Major works in any navigable water

Application and deposit / notice

An owner who proposes to construct, place, alter, rebuild, remove or decommission a major work that is on any navigable water that may interfere with navigation must submit an application for an approval to the Minister and deposit information about the work in locations specified by the Minister. In addition, the owner must publish a notice about the major work to advise interested parties that information has been posted for review. Any comments must be received within 30 days (or as specified) after the publication of the notice to the NPP. After the respective time period for the review, the Minister makes a decision for approval.

The classes of works currently established in the Major Works Order that are likely to pose a substantial interference to navigation:

  • Aquaculture sites
  • Bridges
  • Causeways
  • Works - Water control structures
  • Ferry cables

Works in navigable water listed in the schedule

Application and deposit / notice

An owner who proposes to construct, place, alter, rebuild, remove or decommission a work, other than a major work or a minor work, in a navigable water listed in the schedule and that may interfere with navigation, must submit an application for an approval to the Minister and deposit information about the work in locations specified by the Minister. In addition, the owner must publish a notice about the work to advise interested parties that information has been posted for review. Any comments must be received within 30 days (or as specified) after the publication of the notice to the NPP. After the respective time period for the review, the Minister makes a decision for approval.

Works in navigable waters not listed in the schedule

Application or deposit / notice

An owner who proposes to construct, place, alter, rebuild, remove or decommission a work, other than a major work or a minor work, in any navigable water, may submit a voluntary application for an approval to the Minister or deposit information about the work in locations specified by the Minister and publish a notice to advise interested parties that information has been posted for review. Any comments must be received within 30 days after the publication of the notice to the owner. If there is any written comments, the owner and the commenter must attempt to resolve the concerns within 45 days of the end of the comment period. If the concerns are not resolved within the respective time period, the commenter may, within 15 days after that time period, request that the Minister make a decision whether the owner has to submit an application for an approval in relation to the work.

No interference with navigation

When an owner proposes to construct, place, alter, rebuild, remove or decommission a work in any navigable water that will not interfere with navigation, he must deposit any information specified by the Minister in any place specified by the Minister and must publish a notice. No application for approval is required by the Minister. It is the owner’s responsibility to ensure that the work, or its construction, does not interfere with navigation.

How do I apply?

Your application must be completed as required and submitted via the NPP External Submission Site. The mandatory information requirements for an application are:

  • Completed and signed “application” form (with all mandatory fields filled in);
  • Map showing the location of the project;
  • Plan view drawings (top down) with dimensions;
  • Profile view drawings (side view) with dimensions; and
  • General arrangement drawing(s).

In addition to the mandatory documentation requirements, the application form also provides a list of recommended supporting documents. Including this additional information may help expedite the review, particularly if there are an environmental review or Indigenous consultation considerations associated with the project.

This guide only covers requirements under the CNWA. Works constructed in navigable waters may also involve other obligations under other legislations.

You are ultimately responsible for obtaining any other required forms of approval, including building permits, under any applicable laws—federal, provincial and municipal.

It is very important that you submit a complete application. Make sure that you fill in all mandatory fields and include all mandatory documents. You will be unable to submit your application if all mandatory fields are not filled in.

What will Transport Canada do?

When the NPP receives an application, it is first screened to make sure that:

  • the work is subject to the CNWA;
  • that all required information has been provided; and
  • that it is not likely the work could proceed under the terms of the Minor Works Order.

If these requirements are not met, your application will be rejected.

Following the initial screening, the application is assigned to an NPP Officer. The officer assesses the nature and degree of the potential interference. For NPP purposes, “nature” identifies the source of the interference and “degree” indicates the severity of potential navigation impacts.

The officer will look at a variety of factors, including:

  • The characteristics of the navigable water in question;
  • The safety of navigation in that navigable water;
  • The current or anticipated navigation in that navigable water;
  • The impact of the work on navigation, including as a result of its construction, placement, alteration, rebuilding, removal, decommissioning, repair, maintenance, operation or use;
  • The impact of the work, in combination with other works, on navigation, if the Minister is provided with, or has in his or her possession, information relating to that cumulative impact;
  • Any Indigenous knowledge that has been provided to the Minister;
  • Any comments that are received from interested persons within the comment period;
  • The record of compliance of the owner under this Act; and
  • Any other information or factors that are considered relevant.

Approval Process Flow Chart

Step 1:
Apply		 Step 2:
NPP		 Step 3:
Parallel
(Not for all works)		 Step 4:
Approval of work

Use the Project Review Tool to determine if you need to apply for the approval.

Fill in the application form completely.

Submit your application online with all mandatory documents.
 

Application is screened to ensure it includes all mandatory information and documents.

NPP Officer reviews project for impacts to navigation; this may include on-site assessments.

Additional information may be required from owner.

The following processes may also be required:

  • Input from other government agencies;
  • Public review and comment;
  • Environmental review(s);
  • Indigenous consultation; and/or
  • Governor in Council review

NPP may issue an approval document.

You must meet all terms and conditions.

NPP Officer may inspect site for compliance.

While conducting the assessment, the NPP Officer may ask you to take certain actions. For example:

  • Provide additional information;
  • Meet the officer on the site;
  • Publish information about your work (mandatory);
  • Seek stakeholder input; and/or
  • Begin a parallel review process.

During the assessment phase of the review, the NPP may develop project-specific requirements for mitigating the potential impacts to navigation. This may include terms and conditions that would be attached to any approval issued for the work. Possible compliance requirements may be identified, such as on-site inspections by TC staff during or after the construction of the work.

Be sure to submit your application to the NPP well before you want to start building or placing your work, undertaking alteration, major repair/rebuilding, removal, or decommissioning of your work. This will give the NPP time to process your application.

You must complete the NPP process before construction starts. Once issued, ensure that your NPP documents are available upon request.

What might be the outcome?

Following the assessment, there are three types of decisions that may be issued by TC:

  1. An approval is issued under section 7(6) of the CNWA. The Minister may issue an approval for the work, including the site and plans, if he or she considers it appropriate in the circumstances.
  2. An approval is issued under section 7(13) of the CNWA. The Minister may approve the construction, placement, alteration, removal or decommissioning of a work after it has begun or is completed, or after it has begun but is not yet completed.
  3. Permission to proceed with the work is denied. If the assessment finds that impacts to navigation are unacceptable, permission to proceed with the work may be denied. It may be possible for the work to be re-assessed following changes to the design of the work. The NPP will provide guidance to the owner. Permission may also be denied pending the outcome of other review processes (environmental review and/or Indigenous consultation). These processes are described below.

Parallel review processes

Depending on the type of project proposed, the nature and degree of impacts, and its location, you may need to go through one or more additional review processes. These processes are referred to as parallel review processes by the NPP and they may run concurrently with the NPP review. Please contact your regional NPP office early in your project planning process to get additional guidance.

The other processes are:

  • Environmental reviews – review of potential adverse environmental effects under the Impact Assessment Act (IAA); or potentially the Northern Environmental regimes;
  • Indigenous consultation – review of potential adverse impacts on potential or established Aboriginal or Treaty Rights recognized and affirmed in section 35 of the Constitution Act, 1982; and/or
  • Order in Council exemption – pursuant to CNWA subsection 24(1) for the throwing or depositing of certain material or the dewatering of a waterway.

Environmental reviews

Certain works may result in the need to assess potential environmental impacts related to the project. These environmental reviews are required under various pieces of federal legislation or land claim agreements. TC is prohibited from exercising any power, duty or function under an Act of Parliament (e.g., granting an approval under the CNWA) that would allow a project to proceed until the requirements under any applicable federal environmental or impact assessment legislation are met. This includes projects under the IAA and projects under the Northern Regimes.

The IAA and its regulations establish the federal legislative basis for the practice of impact assessment in most regions of Canada. It also includes specific provisions for projects on federal lands.

If your work is not a “designated project”, the NPP must know whether the work is located on federal lands, as defined in s. 2 of the IAA. Projects on federal lands may require an environmental effects evaluation (EEE). The NPP informs TCs Environmental Assessment Group of all work on federal lands to ensure federal lands requirements are met.

While the IAA has very limited applicability in the North, IA processes established under the Northern regimes serve a similar purpose. Please consult the links below to learn more about their applicability and requirements.

If an environmental review is required for your project, you may need to provide input or additional information. NPP cannot provide you with a determination on the likelihood of interference under the CNWA until the requirements under the applicable federal impact assessment legislation or land claim agreement are met.

Your NPP regional office will be able to assist you in advance of submitting your application. If you select “unknown” as a response, an NPP Officer may contact you for further information.

If an environmental review is likely to be necessary, you are advised to attach a separate detailed project description, which may be combined with the required project description information.

The following is the preferred format for separate project descriptions. All of the listed elements should be covered:

  • Geographic and environmental setting;
  • Land use information;
  • Project components / structures;
  • Project activities;
  • Resource / material requirements;
  • Consultations undertaken; and
  • Additional components.

The text below will help you to determine if your work might be a designated projectunder the IAA.

Potential requirements under the IAA

On your application for approval, you will be asked if your project is a designated project under the IAA. When a project meets the requirements of a designated project, a federal impact assessment may be required.

The list below notes some common types of projects captured by the Physical Activities Regulationsunder the IAA:

  • Generating facility
  • Transmission line
  • Dam, dyke, reservoir or other structure for the diversion of water
  • Oil or gas facility or oil and gas pipeline (including sour gas, natural gas, etc.)
  • Offshore exploratory wells
  • A mine or mill or quarry (including all metals, pulp or paper or other materials)
  • An industrial or nuclear facility, smelter or tannery
  • A canal or lock
  • A marine terminal
  • A railway line or public highway
  • A waste management facility
  • A military base, training area, or test area
  • An aerodrome or runway
  • An international bridge, interprovincial bridge, or bridge over the St. Lawrence Seaway

Before submitting an application to the Minister, owners are strongly encouraged to contact the Impact Assessment Agency of Canada, if there is potential that any component(s) of the work meet the conditions of a designated project under the IAA.

The additional resources section of this guide provides a link to the regulations, which includes detailed conditions and thresholds for each type of project.

Indigenous Consultation

The federal government has a legal duty to consult Indigenous groups when its conduct has the potential to adversely impact Aboriginal or Treaty rights. If your work triggers the legal duty to consult with Indigenous groups, you may need to provide detailed information necessary to ensure consultations are adequate. TC will notify you if a consultation is required.

Order in Council exemption

There are several prohibitions under the CNWA that can warrant an Order in Council exemption:

  • Throwing or depositing floating materials likely to interfere with navigation in any navigable water or that flows into any navigable water (e.g., disposal of waste from logging activities);
  • Throwing or depositing materials liable to sink to the bottom of a navigable water where there is not a minimum depth of 36 meters of water at all times (e.g., dumping of mine tailings); and,
  • Dewatering, which has been clarified in the amended legislation, states that no person shall take any action that lowers the water level of a navigable water or any part of a navigable water to a level that extinguishes navigation for vessels of any class that navigate, or are likely to navigate, the navigable water in question.

The prohibition of these activities applies to all navigable waters in Canada, and any water that flows into a navigable water, not just those listed on the schedule to the Act.

The Governor in Council has authority to exempt waters from the application of these prohibitions, if it is in the public interest to do so. This mechanism is called an Order in Council. Many federal and provincial departments, as well as agencies, may become involved in this process. Extensive public consultation and Indigenous consultation are required, while an environmental review may also be required.

Typically, Orders in Council facilitated through the CNWA are only sought out for major resource development projects. For these projects, the first point of contact with the federal regulatory review process should be the Major Projects Management Office (MPMO) at Natural Resources Canada. MPMO Officers will be able to provide an overview of all the required components.

If an Order in Council is sought to exempt a navigable body of water, and/or any water that flows into a navigable water, from the prohibitions in the CNWA, it is the responsibility of the project owner to compile the baseline research required for TC to conduct triage and prepare the necessary documents related to the Order in Council. TC will develop the Minister’s recommendation (the official request for an exemption from the Minister of Transport to the Governor in Council), based on the information and evidence submitted.

For more information, see the Cabinet Directive on Regulation: Policies, guidance and tools.

Contact information and resources

Resources

Contact

Contact the NPP office in your region with any questions or concerns you may have.

Additional resources

A guide to the Navigation Protection Program’s Application and Review Requirements
(PDF, 1.1 MB)

 

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